Opinion
No. CV 99-0586362
December 9, 2002
ADDENDUM TO MEMORANDUM OF DECISION DATED OCTOBER 18, 2002 RE: DISCOVERY
In Memorandum of Decision dated October 18, 2002, Memorandum, this court reserved decision relevant to petitioner's Motion to Compel, Interrogatories Nos. 13 and 16, wherein the court ordered that:
Filed with the clerk on October 29, 2002.
See Memorandum of Decision dated October 18, 2002, page 2 footnote 2 (wherein the court incorrectly refers the reader to pages 37 to 41 infra; the reference should refer to pages 21-23 infra.)
"all police reports and/or any other documents alleging or containing information relevant to the sexual abuse of M by anyone for the years 1993, 1994 and 1995 (whether or not an arrest occurred) are to be submitted to the court under seal . . . in order for the court to conduct an in camera review.",
Memorandum page 23.
The states attorneys office turned over to the court 67 pages of documents. Some of the documents were stapled together relevant to a particular case number, other documents were not and the court attempted to assemble said loose documents relevant to topic. Several of the documents are duplicates. The court did number the documents for control purposes 1 through 67.
In ordering the documents submitted to the court, this court did mischaracterize the pronouncements of the trial court. The trial court had not previously ordered the subject documents turned over to the defense as articulated in Memorandum.
In this court's Memorandum this court did represent "[t]he record reveals that the trial court did request of the assistant states attorney that the information concerning any assaults upon M by Reardon and/or RZ or others be provided to the defense." Memorandum, page 21. A review of the relevant portion of the trial transcript reveals that the trial court made no such order. The record reflects that the trial court requested that the states attorney obtain information relevant to any other assaults upon M from various police agencies. The court further indicated that in the event "there is anything that is relevant or exculpatory then Mr. Provost is entitled to it." (Trial transcript pps. 517-518). The states attorney agreed.
The nature of the inquiry herein is for this court to ascertain, from the documents provided, under seal, whether there is anything contained therein that is exculpatory and/or relevant to the issues and/or credibility of a material witness regarding the pending Petition for New Trial. Also, the court is to inquire whether said documents reflect any assault upon M, the victim, that occurred prior to February 4, 1994, and would therefore be relevant to any inquiry concerning an alternative source of M's knowledge of matters of a sexual nature.
A petition for a new trial is a civil action. Lombardo v. State, 172 Conn. 385, 390-91, 374 A.2d 1065 (1977). Connecticut Practice Book § 13-2 provides the standard for the scope of discovery.
In any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Written opinions of health care providers concerning evidence of medical negligence, as provided by General Statutes § 52-190a shall not be subject to discovery except as provided in that section.
Contained in the documents turned over to this court, under seal, is a "case report" relevant to RZ. This report contains an uncorroborated complaint. Although the information contained therein, may, arguably, be relevant to the credibility of M in any re-trial of this matter and therefore would be disclosable to petitioner (under seal), this court is of the opinion that it is precluded by law from disclosing the information.
The RZ report was prepared in 1995. State law requires that any complaint that remains uncorroborated must be destroyed within 15 months of its creation.,
General Statute § 1-216 reads in relevant part: ". . . . records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records. (Emphasis added).
General Statute § 1-210 reads in relevant part: (a) Except as otherwise provided by any . . . state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . . (b) Nothing in the Freedom of Information Act shall be construed to require disclosure of: . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to § 1-216. . . ."
So also in Bona v. Freedom of Information Commission, 44 Conn. App. 622, 691 A.2d 1 (1997) our appellate court in interpreting [General Statutes §§ 1-210 and 1-216] held that police reports containing uncorroborated allegations are not to be disclosed Accordingly, said documents are not disclosed to petitioner and remain under seal. (Documents, pages 1 through 9).
Likewise, police records concerning "Romeo" are in the nature of an uncorroborated complaint and is not subject to disclosure for the same reasons articulated hereinabove relevant to RZ. (Documents, pages 22, 38-39, 42-45 and 53).
The next item the court reviewed was the arrest warrant application for Richard Reardon. The court discerns nothing in the records provided that is exculpatory. However, the fact that the record reveals that the allegations were made against Reardon on November 8, 1995, one week before M's testimony in the petitioner's trial, the information therein, may, arguably, be relevant to M's credibility and the degree of her sexual knowledge, and the source of that sexual knowledge, prior to her testimony. Accordingly, the arrest warrant application of Reardon is hereby disclosed to the petitioner, under seal. (Documents pages 10 through 13, 23 and 24).
The court next reviewed records emanating from the Department of Children and Families (DCF). Records prepared by DCF are privileged. See General Statutes § 17a-28.
Upon a careful review of General Statute § 17a-28 the court concludes that several items of the documents provided, may, arguably, be relevant to the credibility of M in a future trial. This court is of the opinion that under the circumstances of this case, the items are privileged, and the court is not free to order disclosure.
However it is noteworthy that under § 17a-28 (l) in a criminal prosecution (this petition is a civil matter) the states attorney is obligated, without court order, to turn over "information and material contained in such record which could be the subject of a disclosure order." Request should be made to the state in the proper forum.
Accordingly, the items from DCF are privileged and not subject to disclosure in this proceeding. (Documents 42, 49, 52-54).
The court could discern nothing in the remaining documents provided by the state which in any way are relevant to our inquiry or provide a basis for any indication of the sexual molestation of M prior to February 4, 1994, the date on which M disclosed the molestation by petitioner. Accordingly, said remaining documents are not subject to disclosure and will remain under seal.
___________________, J. Miano